You Don’t Have to be Prenda Law for Mass Copyright Litigation to Turn Sour

WEST PALM BEACH, Fla. – Last week, the Boca Raton-based Lomnitzer Law Firm filed suit against its former clients, adult entertainment studio Malibu Media, alleging breach of contract.

According to Lomnitzer’s complaint, in violation of a contract between the firm and the studio, on some unknown date, Malibu began instructing attorneys elsewhere in the country to bypass Lomnitzer, which by contract was supposed to managing Malibu’s mass copyright litigation campaign on a nationwide basis, with respect to the remittance of settlement funds.

In the complaint, Lomnitzer also alleges that as of the end of 2019, the firm “has issued invoices to Malibu in the amount of $262,549.92 that are currently open and unpaid.”

Malibu has yet to respond to the complaint, so we have yet to hear their side of the story. The Lomnitzer lawsuit isn’t the central subject of this post, though; the subject is how mass copyright litigation frequently seems to end poorly for the plaintiffs and attorneys involved, whether initiated by adult companies or mainstream entities.

To be sure, there are companies which have made (and continue to make) money by threatening legal action against large numbers of people who have allegedly illegally downloaded their copyrighted works. How much money they’ve made and by how much it exceeds the costs of the litigation is something about which we can only speculate.

We don’t need to speculate about the poor outcomes of such litigation that I referenced above, though. And while the misdeeds (and consequences thereof) of John Steele, Paul Hansmeier and their now-defunct Prenda Law are the most extreme case of a bad outcome from mass copyright litigation, there are many less dramatic examples, as well.

While Lincoln Bandlow, the attorney in question blamed the problem on a technical glitch, a (now-former) partner in the prominent Los Angeles law firm Fox Rothschild was sanctioned for missing deadlines in “roughly 25” cases – approximate 1% of the number of copyright lawsuits Bandlow has filed on behalf of Strike 3 Holdings, the company behind adult brands Tushy and Blacked, among others.

The sanctions don’t represent the courts’ only concern with respect to Strike 3’s nationwide campaign. One judge has termed Strike 3’s approach to mass copyright litigation a “high-tech shakedown” that “treats this court not as a citadel of justice, but as an ATM.” Put mildly, those aren’t the sort of comments you want to hear from a federal judge overseeing your case.

Lest you think the judges hearing these cases are simply biased against adult companies, rather than the methods involved in mass copyright litigation, attorney Richard Liebowitz has found that the courts aren’t particularly receptive to filing thousands of such cases on behalf ‘mainstream’ rightsholders, either.

My point here is that litigants don’t need to be involved in the sort of blatant criminality that landed Steele and Hansmeier in hot water to have mass copyright litigation go south on them. By now, it’s clear many courts simply abhor mass copyright litigation, full stop.

Many courts see demand letters sent out by the thousands and attempts to join far-flung defendants in a single lawsuit as clear indications these campaigns are about extracting settlements, rather than a sincere intent to litigate the underlying claims.

With good reason, courts are also hesitant to accept that an IP address match with a physical location or even an individual device is the same thing as identifying a specific defendant – particularly in residences and businesses where multiple users have access to and routinely use the device.

It’s easy to understand the frustration felt by content creators and rightsholders over the ease with which people can illegally download their work, especially when weighed against the difficulty of enforcing their intellectual property rights. And there’s little doubt in my mind that much of the time, the plaintiffs in these cases have accurately identified the person(s) responsible for the illicit downloading in question.

I’m sure to the plaintiffs involved in these cases, a judge’s concern for procedure, for the proper role of the court and for adhering strictly to the rules of evidence seems beside the point – almost academic. They’ve been stolen from dammit, and they want to be made whole. It’s certainly not an unreasonable desire, or unreasonable expectation.

When deciding whether to engage in mass copyright litigation, however, rightsholders would be wise to consider the way the wind is blowing from the courts’ perspective – and as I see it, after closely watching such cases over a period of nearly 10 years, it’s sure doesn’t seem like a tailwind.

Lemon image by Lisa Fotios from Pexels